Erenita v Taninga [2005] KICA 17; Land Appeal 08 of 2004 (8 August 2005)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Land Appeal 8 of 2004

BETWEEN:

MARIA ERENITA
Appellant

AND:

TOOM TANINGA
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Glenn Boswell
Counsel for The Respondent: Banuera Berina

Date of Hearing: 3 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

[1] In a judgment delivered on 29 August 2003 a Single Magistrate ordered the appellant “to vacate the place that she is residing upon”, because, the Magistrate held, it is registered in the name of the respondent. Her appeal to the High Court was dismissed on 21 July 2004. She has now appealed to this Court. The eviction order has presumably been stayed pending the hearing of her appeal. The essence of her case is that she, and not the respondent, owns the land on which she is living; or perhaps more accurately, that she may well own that land. The difficulty is to a large extent that there has never been any fixing of boundaries.

[2] There is a complex history to the case, revolving around divisions and transfers of land known as Karabinobino 686a which lies between the lagoon at the north and the ocean at the south. We detail the history as best we can, relying for the most part on a very helpful diagrammatic account prepared by Mr Boswell. In 1959 Karabinobino 686a was subdivided into two plots, 686a/1 on the eastern side and 686a/2 on the western side, with Baikitea mt mm registered as owners of the former and Roua mt of the latter.

[3] By case 117/68 the eastern plot 686a/1 was registered to Batetoba and Tekina as co-owners and the western 686a/2 was registered presumably by inheritance to Roua Tamoaieta and his sister Terengantaake, who is the mother of the appellant, Maria. It seems they were co-owners.

[4] In 1978 Tekina gave a portion of the eastern plot to Toom Taninga, confirmed by the Land Court in case 11/78 as 686A/1. The position with regard to Batetoba’s interest immediately following this is unclear.

[5] In 1981 Roua asked the Land Court to approve a division of 686a/2 between himself and his sister Terengantaake. The record shows that there were family difficulties between them and to resolve them he proposed this division, while he was to retain the whole of a different piece of land for himself. His sister was not happy with this, but the Court made the order, and the land Terengantaake thus acquired in her sole name was registered as 686a/2e. Down to this day, she holds land registered under this description. There is no record of the number if any that was then given to the portion vested in Roua.

[6] The next transaction was a sale by Roua of his portion of 686a/2 to Moote Terukaio. At about the same time, Batetoba’s interest in the eastern plot reappeared in the record as 686a/1e, along with Toom’s interest as 686A/1.

[7] The result of all this was that Moote (with no registration number) and Terengantaake (No. 686a/2e) were registered on 686a/2 and Toom (as 686A/1) and Batetoba (686a/1e) were registered on 686A/1.

[8] Moote did not immediately occupy his land, and Toom, apparently mistaken as to the land that had been given to him, began to live on what was in fact Moote’s land, and did significant work on it including building seawalls on both the ocean and lagoon sides. When, later, Moote sought to evict Toom, the Lands Court concluded that because of this work, the two should exchange their lands: (Case 193/87). As a result, Moote is now shown on the records as owner of 686a/1a along with Batetoba as owner of 686a/1e, on the eastern plot, Terengantaake of course remained on 686a/2e and at some stage Toom’s interest was registered as 686a/2a, on the western plot.

[9] The appellant, Maria, inherited 686a/2e from Terengantaake, who was her mother, and has a certificate of title for it.

[10] It is obvious that the current dispute, and earlier problems, are due to the fact that there has been no determination of boundaries, whether north/south or east/west. As a result, Maria was found to be living on the eastern lot, 686a/1, whence Moote successfully had her evicted by Court order: 12/02. She then went across to the ocean side of 686a/2, which she understood to be her land, 686a/2e. But now Toom sought to evict her from that.

[11] It is from that eviction proceeding, case 167/03, that this appeal comes. The case came before the Single Magistrate in August 2003. After traversing the history of Karabinobino, the Magistrate observed that when Roua processed the land sale to Moote (para [6] above) he did not declare that he owned only half and that Terengantaake owned the other half. She held that “there is land belonging to Terengantaake, the mother of the respondent, which was halved with Roua upon land Karabinobino”. But, the Magistrate said, “The question is where is land for Terengantaake on Karabinobino”.

[12] The Magistrate then went on to consider the Court – ordered exchange between Toom and Moote. She seems to have taken the view that Toom had acquired the whole of the eastern plot and that the exchange therefore involved him receiving the whole of the western plot in return. On that view, Maria, having already been held to be a trespasser on the eastern side, was a trespasser on the western side as well. The Magistrate did not find it necessary to answer the rhetorical question she had asked herself, nor did she appear to appreciate that her decision meant that there was no land left for Terengantaake. She simply made an order in these terms:

“It is appropriate then for Maria to vacate the place that she is residing upon one month from this day since the court believes that their half has been exchanged in CNO 193/87”.

[13] Maria appealed and her appeal came before the High Court on 17 June 2004. During the hearing it was noticed that in her judgment the Magistrate had omitted the full reference to Toom’s land. She was asked to provide it, and did so in a memorandum which relevantly read:

“Regarding your judgment in the above, the full title reference to the land in dispute is Karabinobino 686a/1.

The appellant is a registered owner on land Karabinobino 686a/2e.

Respondent is settling on land Karabinobino 686a/1, the land he is registered on.

I hope the above clarifies the situation.

[14] Consequently the High Court concluded:

After hearing evidence the Single Magistrate decided that the appellant is occupying Karabinobino 686a/1 which is registered in the name of the respondent. The respondent is therefore entitled to have the appellant removed from the land.

[15] Unfortunately, the Magistrate’s memorandum is materially incorrect. The land in dispute was not 686a/1. That was, in whole or in part, Toom’s land before the exchange. Case 11/78 makes that clear. He is now registered on 686a/2a, as shown on the Certificate of Ownership that is part of the Record before this Court. The Magistrate was however correct in describing Maria’s ownership. The eviction order is therefore meaningless and futile. Moreover it cannot be corrected, for in the absence of a division of Karabinobino 686a/2 it cannot be said that Maria, any more than Toom, is trespassing upon it.

[16] Mr Boswell submitted that the matter cannot be left at that, and we agree. The judgment of the Single Magistrate was based on her finding that Toom was entitled to the whole of the lot on which he is registered, which is, as explained, 686a/2. But that cannot be right. The exchange ordered by the Lands Court in 1987 could not have extended to the whole of 686a/1 on the one part and of 686a/2 on the other, for Terengantaake owned an interest in 686a/2 and Batetoba, whose position has not been discussed, seems to have owned an interest in 686a/1.

[17] It is not for this Court to suggest what steps the parties should take to resolve this unhappy saga, but clearly some steps must be taken to resolve ownership issues and fix boundaries before it is appropriate for any eviction order to be made. We are able to do no more than dispose of the appeal that is before us.

[18] For the reasons given, the appeal is allowed, the order of the Land Court is quashed, and the case is remitted to that Court for further consideration.

[19] The appellant is entitled to her costs in this Court and in the High Court. If counsel cannot agree on an appropriate amount, it is to be fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA